While unwanted conduct, a female manager massaging a male employee's shoulders was not 'related to sex' for the purpose of a harassment claim, the employment tribunals have found.
What Is Sexual Harassment?
Section 26 of the Equality Act 2010 provides that sexual harassment occurs where both:
- A engages in unwanted conduct of a sexual nature or related to their gender
- that conduct has the purpose or effect of either violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B
In deciding whether conduct has this effect, a tribunal must take into account, the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.
Raj v Capita Business Services Ltd (CBS)
Mr Raj was employed by CBS as a Customer Service Agent from Autumn 2016 until 8 August 2017 when his employment was terminated under the probation process. Mr Raj alleged on several occasions that when he was sitting at his desk, Ms Ward (Team Leader) had stood behind him and given him a massage, feeling his shoulders, neck and back.
He argued this was unwanted conduct either of a sexual nature or unwanted conduct relating to his sex within section 26 of the Equality Act 2010 and brought a claim against CBS and Ms Ward.
The Employment Tribunal's Decision
The ET rejected the harassment claim. The ET found that Mr Raj had proven physical contact - a brief massage type contact lasting for two or three minutes, long enough to make him uncomfortable and this had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. However, the ET rejected the allegation that the unwanted massaging of the shoulder areas was 'conduct of a sexual nature'.
The ET also considered that the evidence base for a link to Mr Raj's sex was limited. There was no evidence of Ms Ward behaving in a similar way to anyone else, male or female and they considered this was isolated conduct towards Mr Raj.
The ET also noted: "The context includes the whole chronology of attendance and latterly performance difficulties, the raising of the back issue, the need to encourage performance, and indeed baseless allegations of race discrimination, indicative of a Claimant who would see things that are not there."
The ET found the purpose of the conduct was misguided encouragement: the context was a standing manager over a sitting team member and the contact was with a 'gender neutral' part of the body in an open plan office. Although the conduct was unwise and uncomfortable, it did not constitute harassment.
Mr Raj appealed.
The Employment Appeal Tribunal upheld the ET's decision. The ET had made detailed findings about the context of the conduct. It was entitled to find that whilst the conduct was unwanted it was not of a sexual nature or related to Mr Raj's gender.
Best Practice for Employers
This decision demonstrates how very fact-specific each case is and how important it is for an individual bringing a claim to satisfy all aspects of the legal definition for sexual harassment.
It does not, however, condone inappropriate physical contact in the workplace, and employers should ensure that any anti-harassment training and policy makes this clear to minimise potential misunderstandings.